Questionning Environmental Law And Regulatory Policy

A significant issue in the recent federal government shut down was the fundamental question over the scope of government authority and its role in a wide range of activities. In short, should there be any government involvement with respect to particular issues? While the shut down focused most directly on the federal healthcare program, similar questions have been raised both about Congressional enactments over things such as environmental protection, and the scope of those enactments as reflected by regulation. These policy and practical issues are playing out now with respect to the regulation of air emissions.

Recently, the U.S. Supreme Court has agreed to consider some issues presented by a case styled: Utility Air Regulatory Group v. EPA, but in doing so, it appears that the Court will not revisit its decision confirming that Congress granted EPA has the general authority to regulate global warming greenhouse gases (see, Massachusetts v. EPA, 549 U.S. 497 (2007)). The Court did not take up the Petitioners’ challenge to the basis for regulation, but will apparently focus on the question of whether the scope of federal power under the Clean Air Act to regulate mobile emissions sources (cars and trucks) also allows EPA to regulate stationary sources of these gases. The Supreme Court seems to have reiterated that Congress has the fundamental authority to legislate about conditions such as global warming and will focus on how the EPA may do so.

Recent reports from emerging economies tend to lend credence to concern over the fundamental effects of air emissions and support at least basic regulation. From a human health perspective, the Reuters News Service recently noted a report from the International Agency for Research on Cancer, which indicated that in 2010, approximately 223,000 deaths occurred from lung cancer world wide as a result of air pollution, and that there was also increasing evidence that such pollution results in bladder cancers as well as respiratory and heard diseases. Regulation may also have practical, non-health benefits. At least one high tech company has begun to notice the impacts of certain air pollutants on electronic equipment. A recent report noted that Intel has begun to link sulfur-containing air emissions to problems with the life span and performance of electronics. This same article also notes that human life spans in northern China have been shortened by five years of more as a direct result of air emissions. While these issues are occurring in nations with emerging industrial economies (China and India in these examples), it seems fair to say that they are less a problem in the United States as a result of regulatory programs initiated at the federal level in the 1970s. Thus, while some may continue to argue that the government has neither the authority to regulate environmental conditions, or the practical capability to make those conditions less harmful, the law and the evidence appear to be to the contrary.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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